15 FLRA No. 9
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1430
Union
and
DEPARTMENT OF THE NAVY,
NORTHERN DIVISION, U.S. NAVAL
BASE, PHILADELPHIA, PENNSYLVANIA
Agency
Case No. O-NG-616
DECISION AND ORDER ON NEGOTIABILITY ISSUES
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute), and raises issues
concerning the negotiability of two Union proposals. /1/ Upon careful
consideration of the entire record, including the parties' contentions,
the Authority makes the following determinations.
Union Proposal 1
The identification of performance elements and the
establishment of performance standards shall be a joint planning
communication process between the employee with the aid of the
steward and the supervisor. Employees and their supervisors shall
meet at least once each year to discuss performance standards and
critical elements for the next rating year. The shop steward is
entitled to be present at, and a party to, such discussions.
The Agency argues that the intent of the proposal is ambiguous and
that, if the proposal is construed as requiring bargaining over
identification of performance elements and establishment of performance
standards, it is outside the duty to bargain. On the other hand, if the
proposal is intended only to require that employees be informed
concerning the performance elements and standards applicable to their
performance appraisals, the Agency will withdraw its determination of
nonnegotiability. /2/ In its response to the Agency's Statement of
Position the Union further explains the purpose of this proposal as
being "to propose a procedure that insures employee/supervisor
communications and participation on performance standards as required by
5 United States Code Section 4302(a)(2)." /3/
In National Treasury Employees Union and Department of the Treasury,
Bureau of the Public Debt, 3 FLRA 769, 778 (1980), affirmed sub nom.
NTEU v. FLRA, 691 F.2d 553 (D.C. Cir. 1982), the Authority
section 4302(a)(2) of the CSRA requires that performance
appraisal systems "encourage employee participation in
establishing performance standards" but does not specify the form
which such employee participation must take. Consequently, among
other significant aspects of performance appraisal systems, the
manner in which a particular agency provides for such employee
participation is within the agency's discretion and, therefore,
within the duty to bargain to the extent that it would not prevent
the agency from establishing performance standards and critical
elements pursuant to its statutory rights to direct employees and
assign work. (Footnote omitted.)
Based on the record in the present case, we find that nothing in the
proposal would require the negotiation of performance elements or
standards, or would prevent the Agency from establishing such elements
and standards pursuant to its statutory rights to direct employees and
to assign work. Rather, in our view, the previously quoted intent of
the Union, as well as the express language of the proposal which calls
only for a "joint planning communication process" comprised of
"discussions," is fully consistent with the test set forth in our
decision in Bureau of the Public Debt, as quoted in pertinent part
above.
Accordingly, inasmuch as the proposal is concerned with the manner in
which the Agency will provide for employee participation in establishing
performance standards, but does not prevent the Agency from establishing
such standards pursuant to its management rights, it is within the duty
to bargain for the reasons stated in the Bureau of the Public Debt
decision. /4/
Union Proposal 2
The Employer agrees that anti-union animus will not be
tolerated within the command.
The employer and union agree that a critical labor management
relations element for management officials is an element that
impacts adversely on any unit member, (sic) therefore any
anti-union animus exhibited by any management official shall be
cause for reassignment, downgrade or removal of the offending
management official.
Union Proposal 2 is to the same effect as the proposal found to be
outside the duty to bargain in National Association of Government
Employees, Local R7-23 and Headquarters, 375th Air Base Group, Scott Air
Force Base, Illinois, 7 FLRA 710 (1982), which required that management
consider union recommendations in disciplining management officials and
supervisors "for violations of the rights of employees." In that case,
the Authority found the proposal to be unrelated to conditions of
employment of bargaining unit employees because it concerned the
discipline of persons outside the bargaining unit. Union Proposal 2
likewise addresses the disciplining of management officials, who are
outside the unit. Hence, based on 375th Air Base Group, and the reasons
and case cited therein, it is outside the duty to bargain under the
Statute.
Accor